F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

OCT 16 2002

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
JOEL PEREZ-AGUIRRE,

No. 01-8067
D.C. No. 01-CR-38-B
(D. Wyoming)

Defendant - Appellant.

ORDER AND JUDGMENT

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties request for decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case therefore is submitted without
oral argument.

This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Joel Perez-Aguirre, a federal prisoner represented by counsel, appeals his

sentence on two grounds. First, he argues that he should have received a written
copy of the presentence investigation report in Spanish. Second, he argues that
the district court imposed his sentence in violation of the rule articulated in
Apprendi v. New Jersey , 530 U.S. 466 (2000). Because neither argument is
supported by the facts of this case, we affirm the sentence imposed upon Mr.
Perez-Aguirre.

I. BACKGROUND
Mr. Perez-Aguirre, a Mexican citizen who does not speak English, was
deported to Mexico in 1990 following his conviction for committing an
aggravated felony. In early 2001, Mr. Perez-Agurirre was arrested in Wyoming
on charges of narcotics trafficking. An indictment was subsequently filed with
the district court in Wyoming charging Mr. Perez-Aguirre with one count of
illegal reentry into the United States after deportation, a violation of 8 U.S.C.
1326(a)(2) and (b)(2). After initially entering a plea of not guilty, Mr. PerezAguirre entered into a plea agreement and changed his plea to guilty. Mr. PerezAguirre was provided with a written version of the plea agreement in Spanish that
he signed prior to the courts acceptance of his plea. Because of Mr. Perez-

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Aguirres inability to understand English, a translator was present at all hearings

prior to the acceptance of his plea agreement and at his sentencing.
Before sentencing, the presentence investigation report (PSR) was
translated to Mr. Perez-Aguirre in Spanish by a court-provided translator during a
telephone conversation. As part of the conversation, Mr. Perez-Aguirres
attorneythrough the translatorwas able to discuss in detail all of Mr. PerezAguirres questions and concerns regarding the contents of the report. However,
Mr. Perez-Aguirre was never provided with a written version of the PSR in
Spanish.
At sentencing Mr. Perez-Aguirre complained, through a translator, that he
was not provided with a Spanish copy of the PSR. A colloquy ensued in which
the trial judge was informed that the local procedures no longer covered the
expense of providing a written translation. The trial judge inquired into whether
Mr. Perez-Aguirre understood the contents of the PSR, and the court determined
that he did. The district court then interpreted Mr. Perez-Aguirres request for
more time to have the PSR provided in Spanish as a motion for a continuance and
denied the motion.

II. DISCUSSION
A. Failure to provide written translation of presentence report
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In objecting to the imposition of a sentence because he was not provided

with a written version of the PSR in Spanish, Mr. Perez-Aquirre invokes Fed. R.
Crim. P. 32(b)(6)(A), which states that the probation officer must furnish the
presentence report to the defendant, the defendants counsel, and the attorney for
the Government. Fed. R. Crim. P. 32(b)(6)(A). At issue, then, is whether a
defendant who does not speak English must be provided with a written version of
the PSR in his or her native tongue in order to comply with the Federal Rules of
Criminal Procedure.

At least one other court has addressed the difficulties inherent in providing
a prisoner with only an oral translation of critical documents during a criminal
trial. See United States v. Mosquera , 816 F. Supp. 168, 177-78 (E.D.N.Y. 1993)
(requiring the probation office to supply written translations of a PSR). Another
court, however, has suggested that oral translations are sufficient.

See Sanders v.

United States , 130 F. Supp. 2d 447, 449 (S.D.N.Y. 2001) (rejecting a 2255
petitioners claim of ineffective assistance of counsel and suggesting oral

The government suggests that the appropriate standard of review is for

abuse of discretion. While it is true that a district courts decision to appoint a
translator is generally discretionary, see United States v. Urena, 27 F.3d 1487,
1492 (10th Cir. 1994), this court has never ruled on what standard of review
would apply to a decision not to provide a written translation of a document to a
defendant already receiving the assistance of a translator. While it makes sense
that such a decision would also be discretionary, we need not decide that issue
today.
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notification of the contents of a PSR is sufficient for due process and equal
protection purposes).
The concerns articulated by the court in

Mosquera are important, and they

are perhaps increasingly relevant as the population of non-English speakers in the

United States grows. Even assuming,

arguendo , that a Rule 32 violation

occurred, we will not remand for resentencing absent a showing by the defendant
that he or she was prejudiced by such a violation.

See United States v. Archer , 70

F.3d 1149, 1151 (10th Cir. 1995).

In the present case, Mr. Perez-Aguirre does not make any assertion of
prejudice. In particular, he does not deny that he discussed the contents of the
PSR with counsel through a translator, that he understood the nature of his plea
and the contents of the PSR, and that he understood the maximum penalty that
could be imposed. For these reasons, under any standard of review, we can see no
indication of prejudice. Therefore, Mr. Perez-Aguirres argument on this point
fails.

B. Apprendi claim
Mr. Perez-Aguirre also asserts an argument under

Apprendi . There, the

Supreme Court held that other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
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be submitted to a jury, and proved beyond a reasonable doubt.

Apprendi , 530

U.S. at 490. Mr. Perez-Aguirre notes that the indictment charged him with illegal
reentry of an alien who ha[s] previously been deported . . . [i]n violation of 8
U.S.C. 1326(a)(2) and (b)(2). Joint App., at 1 (Grand Jury Indictment, filed
Mar. 22, 2001). However, Mr. Perez-Aguirre adds, the indictment did not allege
that he had been previously convicted of an aggravated felony. Because that fact
increases the maximum sentence under 1326, he argues that the government
violated Apprendi by not including in the indictment an allegation as to the prior
conviction.

Mr. Perez-Aquirres argument is foreclosed by the Supreme Courts

decision in Almendarez-Torres v. United States

, 523 U.S. 224, 247 (1998). In

Almendarez-Torres , the Supreme Court held that the government need not charge
a prior aggravated felony conviction in an indictment to trigger 1326(b)s
enhanced statutory penalty. This circuit has held that
the narrow holding of

Apprendi did not overrule

Almendarez-Torres because the general rule announced in

Apprendi specifically excludes the fact of a prior conviction.

United States v.

A conviction for violation of 1326(a)(2) generally carries a maximum

sentence of a fine and two years imprisonment.
See 8 U.S.C. 1326(a). Mr.
Perez-Aguirre was sentenced to a term of 78 months, clearly in excess of the two
year maximum for a violation of 1326(a)(2). Section 1326(b)(2), however,
states that an alien described in subsection (a) whose removal was subsequent to
a conviction for commission of an aggravated felony . . . shall be fined . . . ,
imprisoned not more than 20 years, or both.
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Wilson , 244 F.3d 1208, 1216-17 (10th Cir. 2001) (discussing

Apprendi ), cert.

denied , 533 U.S. 962 (2001); see also United States v. Martinez-Villalva

, 232

F.3d 1329, 1332 (10th Cir.2000) (stating that this court is bound by
[Almendarez-Torres ] to hold that the fact of defendants prior felony conviction
is not an element of the offense with which he was charged by indictment, but is,
instead, a sentencing factor);

United States v. Dorris , 236 F.3d 582, 587 (10th

Cir. 2000) (rejecting defendants efforts to challenge the continuing validity of

Almendarez-Torres ). We therefore conclude that the requirements of

Apprendi

were not violated here.

III. CONCLUSION
For the aforementioned reasons, we AFFIRM the sentence imposed upon
Mr. Perez-Aguirre.
Entered for the Court,

Robert H. Henry
Circuit Judge

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